Scottish Government

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CHAPTER THREE
>>> THE RIGHT INTERVENTION AT THE RIGHT TIME - ALTERNATIVES TO PROSECUTION

CHAPTER THREE: THE RIGHT INTERVENTION AT THE RIGHT TIME - ALTERNATIVES TO PROSECUTION

3. ISSUES

3.1 The vision of the criminal justice system, which we articulated in the introduction to this paper, stressed the importance of dealing with minor offences in the way most likely to deter reoffending.

3.2 In some cases prosecution is inevitable. But in others, we need a range of options which can be used quickly to offer an alternative to prosecution. These signal that there is enough evidence to prosecute, but that in this instance a chance is being offered to make reparation without coming to court and possibly acquiring a criminal record.

3.3 For these to be effective, we need robust enforcement which reassures victims that financial penalties will be paid, and that reparation to the community is visible and measurable. So the challenge is to develop a range of alternatives to prosecution which stop offending from escalating and are credible to the public.

3.4 And communities - and individual victims - need to be reassured that increased use of alternatives to prosecution does not mean that minor offences are being overlooked. Acceptance of an alternative does not require a formal admission of guilt, so publicising individual fiscal penalties would not be appropriate. It is, however, important that individual victims of crime are able to see that action has been taken and will be pursued. It is also vital that communities as a whole get feedback from the agencies involved about the extent to which alternatives are used locally, how effective they are, and what the community is gaining as a result.

The recommendations of the McInnes report

3.5 The McInnes report noted that alternatives to prosecution were increasingly used by prosecutors, resulting in a decline in the number of cases prosecuted through the courts. However, given the increasing number of cases reported to the procurator fiscal, it was important for the criminal justice system to have access to a full range of options in deciding how the public interest could best be served in each case.

3.6 The report recommended that alternatives to prosecution should be made more widely available, more flexible and more robust.

3.7 To achieve this, the report recommended an increase in the maximum level of fiscal fine available to prosecutors, the introduction of a fiscal compensation order (FCO), a new enforcement procedure for fiscal fines and FCOs, disclosure of fiscal fines and FCOs before a court in the event of a subsequent appearance, and the extension of the use of fixed penalty notices (FPNs).

Issues raised by the Criminal Justice Plan

3.8 In addition to the proposals outlined above, the Criminal Justice Plan proposed that a prosecutor should have available the option to fine an individual's time in cases where an accused may be unwilling or unable to take up the offer of a fiscal fine. This did not feature in the McInnes report, and accordingly consultation on that report did not address it.

The consultation responses

3.9 The consultation paper asked for the views of respondents on the proposals for alternatives to prosecution. One-hundred-and-sixty-six respondents - 69% of all responses received - commented upon these proposals.

Extension of the use of fixed penalty notices (FPNs)

3.10 The McInnes report proposed (in chapter 9) the extension of the use of fixed penalty notices, as a simple and effective way of dealing with minor offences without using resources other than those of the police. This proposal has in part been implemented by provisions within the new Anti-social Behaviour legislation which make it possible to issue police FPNs in relation to a number of minor nuisance offences, involving (for example) drunkenness, breach of the peace and damage to property. A pilot of the new provisions, with the FPN level set at £40, is due to start on 1 April 2005 in Tayside, and run for a year.

3.11 The report also recommends that recipients of a FPN should be required to 'opt-in' (as with the proposals for fiscal fines) if they want a court hearing, and that failure to pay should result in the fine being registered at a surcharge. These provisions form part of the Anti-social Behaviour FPN pilot.

3.12 The Committee was of the view that there was further scope for the extension of FPNs, beyond that which is being piloted as a result of the Anti-social Behaviour etc (Scotland) Act 2004 - in particular, to other lower-level offending of a statutory nature, such as some of the offences contained in the Civic Government (Scotland) Act 1982.

3.13 Some respondents expressed support for the proposals. It was suggested that clear guidelines from the Lord Advocate would be required to regulate their use, and that specifically there should be guidance as to how many FPNs could be issued to one person before reporting to the procurator fiscal would become appropriate. There was also concern that many road traffic offences, for which FPNs are currently used, tend to be easily provable at the time of the offence or later; circumstances which may not apply to other types of offending behaviour that would be covered by an extension to the use of FPNs.

3.14 We consider that FPNs, correctly and appropriately used, are an important part of a modern justice system, and can be employed to deal with low-level and nuisance offending, as well as road traffic offences. They offer the prospect of a quick, effective response, particularly in relation to minor but chaotic offenders who may respond best to a straightforward face to face approach.

3.15 The piloting of FPNs for anti-social behaviour has already been initiated - we consider it appropriate to evaluate that pilot before deciding how best to extend their use.

3.16 Accordingly, we propose the following:

• to remain committed, in principle, to the nationwide extension of the use of FPNs, with appropriate guidelines in place; and
• to monitor the operation of the pilot scheme extending the use of FPNs before taking a final decision on how best to achieve this.

Fiscal fines

3.17 There was support among respondents to the consultation who commented for expansion in the use of fiscal fines. A number of concerns were expressed about the extent of the proposed expansion. Many of these concerns related to fears that too much power would be concentrated in the hands of the prosecutor, who would effectively be acting as prosecutor, judge and jury. It was noted that the prosecutor would be acting on the basis of the police report only, which might contain insufficient or incomplete information about the offence or the offender and that such fines allow no opportunity to put forward mitigation.

3.18 Fiscal fines have been an important part of the Scottish criminal justice system since their introduction in the 1980s. Their use in appropriate circumstances means that the courts are not clogged up with lower-level offending. As acceptance of a fiscal fine does not involve the recording of a conviction against the accused, the consequence is that offenders do not acquire a criminal record - with possibly disproportionate consequences - for minor offences. Concerns very similar to many of those expressed by consultees were considered by the Stewart Committee, on whose recommendations the existing provisions on fiscal fines were originally introduced in 1987. ¹⁶ The Committee recorded its view that:

'the only part of the judicial process in which the prosecutor [in Scotland] has never been involved is that of the conclusive determination of guilt or innocence of the accused. ...Our proposals do not alter this because the prosecutor does not have the function of determining guilt.'¹⁷

An accused person is under no obligation to accept an offer of a fiscal fine and therefore can still opt for a determination by a court.

3.19 We think that the discussions and conclusions of the Stewart Committee in this respect hold good today. We believe that fiscal fines are a valuable and legitimate alternative to prosecution and our modern prosecutors are well versed and capable in their use. Twenty years on from the Stewart Committee, when courts are busier than ever, it is even more important to ensure that court time is used appropriately and effectively and that prosecution is used proportionately. We agree with Sheriff Principal McInnes that there is scope for increased use and availability of fiscal fines to remove more lower-level business from summary courts, allowing them to focus on more serious crime. As with current use of this disposal, any increase would be accompanied by detailed guidance to prosecutors from the Lord Advocate.

3.20 The McInnes report proposed increasing the maximum level of fiscal fine. Existing legislation already permits a fiscal fine of up to level 1 on the standard scale - £200. The current limit, however, as fixed by regulations, is £100. And it is worthy of note that the level has not changed, even to take account of inflation, since 1996. The Crown Office has carried out an assessment exercise to determine whether the assumptions in the McInnes report about the circumstances in which an expanded fiscal fine might appropriately be used appear to be sound. The exercise suggests that there is substantial scope for increased use of this alternative.

3.21 The Crown Office exercise suggests that raising the fiscal fine maximum to £200, in conjunction with the availability of fiscal compensation orders (see below) has the potential to remove from court between 15% and 20% of cases for which prosecution is neither necessarily a proportionate nor effective response. Raising it to £500, while recognising that that limit would be sparingly used, and in the main for certain categories of statutory regulatory offences, has the potential to further free-up court resource. These cases are frequently more complex, and consume disproportionate resources, for courts, witnesses and the prosecution service. In certain circumstances, therefore, there is considerable merit in encouraging the speedy disposal of such cases.

3.22 We recognise, however, that any increase in the use of fiscal fines must come as part of a package designed to maintain public confidence in their use, while recognising the offending behaviour of the accused. The Crown Office assessment exercise was based on that assumption. To be effective, these proposals need to be implemented along with the proposals for enhanced enforcement outlined later in this chapter.

3.23 Accordingly, we propose:

• that the fiscal fine limit for most offences should be set at £500, to be available to prosecutors along with detailed guidance from the Lord Advocate; and
• that use of the new levels of fiscal fine should be closely monitored.

Fiscal compensation orders

3.24 The McInnes report proposed the introduction of fiscal compensation orders (FCOs), to be imposed by procurators fiscal in much the same way as fiscal fines. The report suggested that they should be used in circumstances where there is quantifiable financial loss, and where the victim of offending behaviour has been subjected to behaviour which is frightening, distressing or annoying or has caused nuisance or anxiety. The report goes on to recommend that there should be no upper limit for these orders.

3.25 A majority of those responding to this issue in the consultation supported the concept of FCOs although a minority expressed concern about the procurator fiscal acting as prosecutor, judge and jury and there were some reservations over whether it was appropriate for FCOs to be used in circumstances beyond clearly quantifiable financial loss.

3.26 The use of FCOs was considered in the Crown Office assessment exercise. Again, the exercise demonstrated that there appears to be scope for the use of FCOs to remove from the courts some cases where compensation would be appropriate, in particular where there was quantifiable loss that was disproportionate to the seriousness of the offending behaviour. At present, some cases which would otherwise be suitable for fiscal fines are prosecuted simply because it is considered that some element of compensation to the victim is appropriate. This then becomes a matter for the court. We do not agree with the McInnes report, however, that there should be no upper limit. But, recognising that minor offending can cause significant damage we think the appropriate limit should be equivalent to the statutory maximum summary fine - £5000.

3.27 We remain committed to addressing the needs and concerns of victims, and consider that the use of compensation in cases beyond those where simple financial loss has been suffered is a part of that.

3.28 Accordingly, we propose the following:

• FCOs should be introduced, with an upper limit of £5,000;
• the new FCOs should be available both for cases where quantifiable loss has been established and where the victim has been subjected to frightening distressing or annoying behaviour, or behaviour which has caused nuisance or anxiety; and
• use of FCOs by prosecutors should be in accordance with comprehensive guidelines provided by the Lord Advocate and their use and impact should be closely monitored.

Enforcement of fiscal fines and fiscal compensation orders and safeguard mechanisms

3.29 Any increase in the use of fiscal fines, and the introduction of FCOs, must be accompanied by robust enforcement mechanisms, otherwise there will be little saving of court time, offenders may escape punishment for their crimes, and the public will have little confidence in the use of alternatives to prosecution. The McInnes report suggested that the current system, in which if an accused person takes no action on receipt of a fiscal fine offer s/he is prosecuted, leads to a significant amount of business ending up in court when it need not - the reason for no action having been taken need not be that the facts on which the offer was based are disputed. The McInnes Committee, on balance, regarded it as reasonable for the accused to have to take positive steps to indicate if s/he wanted a court hearing - the 'opt-out' system.

3.30 Some respondents to the report welcomed this, but others warned that there was a danger of the system being unfair to accused people, who may not appreciate the significance of the documentation. There was also concern expressed that silence was being treated as the equivalent of guilt.

3.31 Enforcement procedures were also addressed by the McInnes report and respondents. The report suggests that unpaid fiscal fines should be registered, with a 50% increase, and thereafter enforced as if they had been imposed by a court. There would be a safeguard mechanism whereby the recipient could contest a recorded fine if good reason could be shown.

3.32 The main concern expressed by respondents about this proposal was the danger of unfairness, particularly the suggestion that the accused would have to demonstrate that s/he did not receive the notice, rather than the enforcing agency having to demonstrate that s/he had.

3.33 The concerns expressed have been carefully considered. We remain committed to removing from the courts, where possible, matters which need not go before them. However, it is important that any system of enhanced fiscal fines and fiscal compensation orders should be both fair and robust, and should encourage the accused who wishes to accept the fine to do so timeously. We consider that it is possible to have a structure of enforcement which requires the accused to opt out, while balancing that with a fair procedure to allow the accused to request recall in appropriate cases.

3.34 Accordingly, we propose that an accused, on receipt of a fiscal fine or FCO notice, should have to take positive steps to indicate if s/he wants a court hearing. We agree with the McInnes report that failure to make payment should result in the fine becoming registered at its full value but believe that an accused should receive a discount for early payment rather than an enhanced penalty for late payment. Fiscal fines and FCOs should no longer be enforced by civil diligence, but should instead become registered fines and enforced as if they had been imposed by a court, but without the ultimate sanction of imprisonment.

3.35 This new system will be underpinned by work that is presently underway between prosecutors and police to improve the quality of police reports and statements to ensure that full and accurate information is provided about the circumstances of the alleged offence but also about the circumstances of the offender, including accurate contact details. We will also make sure that clear and accessible information is made available to the public in general and to those to whom the new fiscal fines are issued, in a range of media and languages, about how this new system will operate.

Disclosure of fiscal fines and FCOs in future court appearances

3.36 Part of the McInnes proposals aimed at making the use of alternatives to prosecution more robust was the recommendation that, while such penalties would continue not to be regarded as convictions, they would be capable of being disclosed to a court in the event of a subsequent conviction within a certain period of time, thus allowing the court to make an informed decision as to the appropriate sentence.

3.37 Concern was expressed by respondents that this would remove an important incentive for the accused to accept these penalties, and that it would lead to the perception that acceptance of a fiscal fine would be regarded as the equivalent of a guilty plea and a conviction.

3.38 We agree that such disclosure should be possible, but that it should be proportionate, and should balance recognition of the offending behaviour against the fact that prosecution in court was not deemed necessary, and that no recorded conviction has resulted.

3.39 Accordingly, we propose the following:

• that prosecutors should be permitted to lay details of accepted fiscal fines and FCOs before a court in the event of subsequent conviction - but only for a period of two years; and
• that this fact should be made clear to the accused when the fiscal fine or FCO is issued.

'Community Fiscal Fines'

3.40 The Criminal Justice Plan proposed, as part of a strengthened package of alternatives to prosecution, that a prosecutor should have available the option to fine an individual's time in suitable cases. Where, for example, a community's wellbeing is undermined by minor offences which damage the physical and social environment, it may be appropriate to offer an alleged offender the opportunity to make reparation to that community in some way.

3.41 The underlying principle of a fine on time is that the offender would be issued with a notice, in much the same way as with a fiscal fine notice, specifying instead a number of hours of unpaid community work to be carried out. On satisfactory completion of a fine on time, no conviction would be recorded against the accused and no further financial penalty would be imposed.

3.42 We envisage community fiscal fines being allocated very shortly after the offending behaviour. We see this option as being a potentially valuable way to engage local communities in the justice process: the community fine would be reparatory in nature (although not necessarily directly linked to the offending behaviour) and local communities would have a say in the projects in their area that should be supported by such work.

3.43 We believe that, alongside the other diversionary and restorative disposals, community fiscal fines will form a useful part of the reform toolkit, enabling us to intervene quickly and appropriately to reduce reoffending. We will consult further on the best way to deliver community fiscal fines most efficiently and effectively and will pilot and evaluate the idea.

3.44 Accordingly, we propose the following:

• to consult further on how best the community fiscal fines could be delivered.

Feedback to victims and communities about the use of alternatives

3.45 We have also listened to the concerns of victims - who wanted to be assured that appropriate action is taken following an offence and to be kept informed of prosecution decisions. Victims can already find out whether the offer of a fiscal fine has been accepted and are entitled to be informed of the reasons why a case is not taken to court even if that decision follows the imposition of a fiscal fine. These arrangements will apply equally to FCOs when they are introduced (indeed, if the victim is to receive compensation they will necessarily be aware of the prosecutor's decision). And they will also apply to community fiscal fines.

3.46 We also recognise the importance of letting communities know what is happening in their area in relation to alternatives. In the next chapter (see paragraphs 4.43-4.45) we identify the importance for each agency of having clear arrangements for engagement with local communities. Where appropriate, we will ensure that summary information about the use and impact of alternatives to prosecution is included in the information given to communities.

Alternatives to Prosecution - Conclusions

Fixed penalty notices

• We remain committed in principle to a further extension of the use of fixed penalty notices, with appropriate guidelines and safeguards in place.
• We will monitor the operation of the anti-social behaviour pilot scheme (which has extended the use availability of fixed penalty notices to a number of 'nuisance' offences) before taking a decision on whether to roll out their use further.

Fiscal fines and fiscal compensation orders

• At the moment a procurator fiscal can offer a fine of up to £100 to an alleged offender - payment of which stops any further court action being taken. We believe that the maximum 'fiscal fine' level should be increased to £500, supported by clear guidelines to prosecutors from the Lord Advocate.
• We believe that the fiscal compensation orders (FCOs) proposed by the Committee should be introduced and that there should be an upper limit on their use equivalent to level 5 on the standard scale of summary fines (£5,000).
• FCOs should be available both for cases where quantifiable loss has been established and where the victim has been subjected to frightening distressing or annoying behaviour, or behaviour which has caused nuisance or anxiety.
• The impact of new provisions relating to fiscal fines and FCOs will be closely monitored;
• We will introduce a number of technical changes to the operation of fiscal fines and compensation orders to ensure that they are effectively used and enforced. These include:
• that, upon receipt of a fiscal fine or FCO notice the accused should have to take positive steps to indicate if s/he would rather have a court hearing than pay the penalty;
• that timeous payment of the penalty will entitle the accused to a discount;
• that failure to make payment will result in the fine becoming registered at its full value;
• that unpaid fiscal fines and FCOs should no longer be enforced by civil diligence, but should instead become registered fines and be enforced as if they had been imposed by a court; and
• that prosecutors should be permitted to provide details of previously accepted fiscal fines and FCOs to a court in the event of subsequent conviction - but only for a period of two years following imposition of the penalty. This fact would be made clear to the accused in the terms of the alternative.

'Community Fiscal Fines'

• We will consult further on how best community fiscal fines could be delivered.

Feedback to communities

• We will ensure that victims are able to obtain information about the offer of a fiscal fine.
• We will ensure that new arrangements for liaison between the criminal justice agencies and local communities include summary information to communities about the use and impact of alternatives to prosecution.